Review of an administrative decision (Registrar's and/or President's)

Notion(s) Filing Case
Decision on Review - 09.04.2009 ŠEŠELJ Vojislav
(IT-03-67-T)

The Registrar issued a decision to monitor all communications between the Accused and his Legal Associates pursuant to Rule 65(B) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules of Detention”). Following the Accused’s request to review the Registrar’s decision, the Trial Chamber. declared to have jurisdiction to decide the matter and overturned the decision.[1] The Registrar challenged the Trial Chamber’s jurisdiction to review its decisions made pursuant to Rule 65(B) the Rules of Detention. The Appeals Chamber found the following:

15. The jurisprudence on the issue of review of administrative decisions of the Registrar is well-established. In Prosecutor v. Krajišnik, the Appeals Chamber, in the absence of indication as to whom was competent to review a decision of the Registrar under Rule 45 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), noted that power to review a decision of the Registrar as to whether a proposed counsel meets the required qualifications under Rule 44 of the Rules lay with the President of the Tribunal.[2] The Appeals Chamber held that

just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal, and a Chamber may only step in thereafter under its inherent power to ensure that its proceedings are fair.[3]

16. On a similar note, in Prosecutor v. Blagojević, the Appeals Chamber determined that the Trial Chamber erred in finding that it had jurisdiction to consider Blagojević’s request for withdrawal of counsel under its inherent power under Articles 20 and 21 of the Statute. Noting that Article 19 of the Directive on Assignment of Defence Counsel provides that a person may seek the President to review the Registrar’s decisions under this Article, the Appeals Chamber held that a Trial Chamber “cannot appropriate for itself a power which is conferred elsewhere” and that “the only option open to a Trial Chamber […] is to stay the trial until the President has reviewed the decision of the Registrar.”[4]

17. In Nahimana et al. v. Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”), seized with a request of Appellant Hassan Ngeze to review an administrative decision of the authorities of the detention facilities, dismissed the motion, after noting that “the complaint procedure for the detention conditions has not been duly followed by the Appellant and that he has not yet exhausted the remedies made available to him by the Detention Rules.”[5]

18. More recently in the same case before the ICTR, the Appeals Chamber, seized of a request to authorise privileged communication between Hassan Ngeze and two legal assistants and one lawyer, noted that the relevant Rules of the Rules of Detention of the ICTR foresaw that “when a detainee is not satisfied with the response of the Commanding Officer […] he or she has the right to make a written complaint to the Registrar who shall forward it to the President of the Tribunal” but that in the case at hand, “the Applicant [had] not exhausted the procedure made available to him under the Detention Rules for consideration of his request”. As a result of the non-exhaustion of  the available procedure, the Appeals Chamber decided not to consider Hassan Ngeze’s motion on the merits.[6]

19. The Appeals Chamber finds that Rule 65(B) of the Rules of Detention is clear in vesting the President with the power to reverse any decision made by the Registrar under this Rule.[7] In the case at hand, the Accused failed to direct an appeal against the Registrar’s Decision of 29 September 2008 to the President of the Tribunal. Therefore, he has not exhausted the procedure made available to him under the Rules of Detention for consideration of his request.

20. The Appeals Chamber agrees with the Registrar that the Accused’s failure to appeal the Registrar’s Decision of 29 September 2008 before the competent body does not grant the Trial Chamber jurisdiction to exercise a power clearly attributed to the President by Rule 65(B) of the Rules of Detention.[8] While mindful of the Trial Chamber’s fundamental duty to ensure the fairness of the proceedings before the Tribunal, the Appeals Chamber recalls that in a case of review of an administrative decision, a Trial Chamber may only step in under its inherent power to ensure that proceedings are fair once all available remedies have been exhausted.[9] Accordingly, the fact that the Statute is superior to the Rules of Detention is of no consequence.

21. Finally, with regard to the issue of concurrent jurisdiction, the Appeals Chamber agrees that the Trial Chamber, by accepting to review the Registrar’s Decision of 29 September 2008, implicitly created a “dual competence on the matter”.[10] Such concurrent jurisdiction to review decisions of the Registrar is not consistent with the exercise of a Trial Chamber’s inherent power to ensure that proceedings are fair only once all available remedies have been exhausted. Accordingly, implying such concurrent jurisdiction constitutes an error of law.

[1] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion of Judge Harhoff in Annex” Filed on 27 November 2008, 1 December 2008, filed on 9 December 2008 (“Šešelj 9 December 2008 Decision”).

[2] Prosecutor v. Krajišnik, IT-00-39-A, Decision on “Motion Seeking Review of the Decisions of the Registry in Relation to Assignment of Counsel”, 29 January 2007, p. 3 (“Krajišnik Decision”).

[3] Krajišnik Decision, p. 3 (emphasis added). See also Blagojević Decision [Prosecutor v. Blagojević, IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 15 December 2003], para. 7.

[4] Blagojević Decision, para. 7. See also Prosecutor v. Delalić et al., IT-96-21-A, Order on Esad Landžo’ Motion for Expeditated Consideration, 15 September 1999, para. 3.

[5] Nahimana et al. v. Prosecutor, ICTR-99-52-A, Decision on Hassan Ngeze’s Motion for a Psychological Examination, 6 December 2005, p. 4.

[6] Ngeze v. Prosecutor, ICTR-99-52-A-R, Decision on Hassan Ngeze’s Motions of 15 April 2008 and 2 May 2008, 15 May 2008, p. 3-4.

[7] Rule 65 of the Rules of Detention reads, in relevant part: The detainee may at any time request the President to reverse any decision made by the Registrar under this Rule (emphasis added).

[8] Registry submission [Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-T, Registry Submission Pursuant to Rule 33(B) Following the President’s Decision of 17 December 2008, 18 February 2009], para. 16.

[9] Krajišnik Decision, p. 3.

[10] See Dissenting Opinion of Judge Harhoff in Šešelj 9 December 2008 Decision  para. 13.

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Other instruments Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (ICTY): Rule 65.
Notion(s) Filing Case
Decision Regarding Additional Funds - 13.11.2003 MILUTINOVIĆ et al.
(IT-99-37-AR73.2)

19.     The Trial Chamber correctly considered that the Registrar has the primary responsibility in the determination of matters relating to remuneration of counsel under the Legal Aid System of the International Tribunal. The Appeals Chamber has already held that, where the Directive expressly provides for a review of the Registrar’s decision, the Trial Chamber cannot interfere in the Registrar’s decision, and its only option is to stay the trial until that procedure has been completed.[1] Where, however, the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber, pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in the light of its effect upon the fairness of the trial.

20.     The exercise of such power should, however, be closely related to the fairness of the trial, and it should not be used as a substitute for a general power of review which has not been expressly provided in the Directive. […]

[1] Prosecutor v. Blagojević, IT-02-60-AR73.4, Ex Parte and Confidential Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003, para. 7.

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Notion(s) Filing Case
Decision on Psychological Examination - 06.12.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 2: CONSIDERING that the rights of detained persons and conditions of their detention are regulated by the Rules Covering the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal[1] (“Detention Rules”);

P. 4: FINDING also that, had the procedure of the Detention Rules been followed, the Appeals Chamber would only have jurisdiction to review a Registrar’s or President’s decision if the issues in question were closely related to the fairness of the proceedings on appeal;[2]

[1] Adopted on 5 June 1998.

[2] Ferdinand Nahimana et al. v. The Prosecutor, Case No ICTR-99-52-A, Decision on Hassan Ngeze’s Motion to Set Aside President Møse’s Decision and Request to Consummate his Marriage, 6 December, p. 4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras. 4 and 7; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

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Notion(s) Filing Case
Review Decision Concerning Payment - 13.04.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

12. The Appeals Chamber recalls that the Registrar has the primary responsibility in the determination of matters relating to the remuneration of counsel.[1] Article 22 of the Directive on the Assignment of Defence Counsel (“Directive”) empowers the Registrar to establish a “lump sum” system of remuneration to assigned counsel, and, in the event of a disagreement over the sum, the Directive vests the Registrar with the discretion to decide the matter after consulting the relevant Chamber.[2] According to Article 30 of the Directive, the Registrar also decides any disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses after consulting the President and, if necessary, the Advisory Panel.[3] The Directive does not specify an avenue for review of a decision by the Registrar concerning the lump sum payment.

14. However, there is nothing in the Statute of the Tribunal, Rules, or the Directive that provides for a direct appeal of a decision by the Registrar or the President concerning an administrative matter that related exclusively to the trial and has no bearing on appellate proceedings.[4] Rather, the Appeals Chamber’s consideration of such matters is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[5] Therefore, the Appeals Chamber considers that it has no jurisdiction over this matter.

[1] See, e.g., Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, para. 4. See also Prosecutor v. Nikola [ainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12, referring to Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

[2] Article 22(C) of the Directive states: “The Registrar, with the concurrence of the President, may establish an alternative scheme of payment based on a fixed fee (“lump sum”) system consisting of a maximum allotment of moneys for each Defence Team in respect of each stage of the procedure taking into account the Registrar’s estimate of the duration of the stage and the apparent complexity of the case. In the event that a stage of the procedure is of substantially longer or shorter duration than estimated, the Registrar may adapt the allotment, whether by increasing or decreasing it. In the event of disagreement on the quantum of the maximum allotment, the Registrar shall make a decision, after consulting the Chamber and, if he deems it expedient to do so, the Advisory Panel.”

[3] Article 30 of the Directive states: “In the event of a disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses, the Registrar shall make a decision after consulting the President and, if necessary, the Advisory Panel, on an equitable basis. The Registrar may also consult the President and, if necessary, the Advisory Panel, and make a decision under this Article, if it appears to the Registrar that a Counsel has been submitting inflated claims for remuneration or claims for expenses which are unnecessary or unreasonable.”

[4] Cf. The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-AR, Decision on Interlocutory Appeal of a Bureau Decision, 22 May 2006, para. 4 (“Seromba Decision”); Case Miscellaneous Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002, p. 3; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12 (“The Applicant seeks leave of the Appeals Chamber to appeal against the Decision of the President and the Decision of the Trial Chamber. While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof. The Appeals Chamber also recalls that it has inherent jurisdiction to review decisions issued by the President of the Tribunal in certain instances, including where such decisions are closely related to issues involving the fairness of proceedings before the Appeals Chamber.”) (emphasis added) (internal citations omitted).

[5] Cf. Seromba Decision, para. 4. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.6, Decision on Radovan Karadžić’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010; Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.2, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities, 7 May 2009. 

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Notion(s) Filing Case
Decision on Leave to Appeal - 11.09.2008 NTAGERURA André
(ICTR-99-46-A28)

12. […] The Appeals Chamber also recalls that it has inherent jurisdiction to review decisions issued by the President of the Tribunal in certain instances, including where such decisions are closely related to issues involving the fairness of proceedings before the Appeals Chamber.[1] 

13. The Appeals Chamber recalls that, on 8 February 2006, it affirmed the Trial Chamber’s acquittal of the Applicant and ordered the Registrar to take, without delay, all necessary steps to effect such acquittal.[2] The Decision of the President and the Decision of the Trial Chamber are thus related to the order given to the Registrar to effect the Applicant’s acquittal. Furthermore, the Applicant claims that he remains in de facto custody of the Tribunal and that full effect has not yet been given to his acquittal. The Appeals Chamber is concerned by this claim, in particular as to whether it raises an issue regarding the effectiveness of its judgements acquitting an accused. The Appeals Chamber considers this issue to be closely related to the fairness of the proceedings. Accordingly, the Appeals Chamber has inherent jurisdiction to review the Decision of the President and the Decision of the Trial Chamber.[3]

[1] See The Prosecutor v. Ferdinand Nahimana et al., Case No. IT-99-52-A, Decision on “Appellant’s Ngeze Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3; The Prosecutor v. Ferdinand Nahimana et al., Case No. IT-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras. 4, 7; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel, 23 November 2006 (“Barayagwiza Decision”), para. 9.

[2] Disposition, p. 2.

[3] The Appeals Chamber recalls that a review of decisions closely related to issues involving the fairness of proceedings “is neither a rehearing, nor an appeal, nor is it in any way similar to the review, which a Chamber may undertake of its own judgement in accordance with Rule 119 of the Rules”, Barayagwiza Decision, para. 9. 

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Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

9. The Appeals Chamber has inherent power to review decisions of the Tribunal’s President concerning withdrawal of counsel where such decisions are closely related to issues involving the fairness of proceedings on appeal and if the procedure provided by Article 19 of the Directive has been followed. However, such review is neither a rehearing, nor an appeal, nor is it in any way similar to the review which a Chamber may undertake of its own judgement in accordance with Rule 119 of the Rules.[2] The Appeals Chamber recalls that judicial review of an administrative decision in relation to legal aid under the Directive is primarily concerned with the regularity of the procedure by which the Registrar and/or the President reached the impugned decision.[3] The decision will be quashed if the Registrar or the President:

(a) failed to comply with the legal requirements of the Directive, or

(b) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or

(c) took into account irrelevant material or failed to take into account relevant material, or (d) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[4]

The Appeals Chamber also specified that “[t]hese issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar [or President], but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled”.[5] Finally, in the review, the party contesting the administrative decision bears the onus of persuasion and must show that (a) an error of the nature described has occurred, and (b) that such error has significantly affected the impugned decision to his detriment.[6]

[1] Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7; Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3; Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace His Defence Team, 7 November 2003 (“Blagojević Appeal Decision”), para. 7. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003 (“Milutinović et al. Decision”), para. 19; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Request of Withdrawal of Defence Counsel), 2 February 2000, p. 2.

[2] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka Decision”), para. 13. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on the Defence Motions for the Reinstatement of Jean Yaovi Degli as Lead Counsel for Gratien Kabiligi, 19 January 2005 (“Bagosora Decision of 19 January 2005”), para. 37; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision [of the President] Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005, para. 4; The Prosecutor v. Vesselin Šljivančanin, Case No. IT-95-13/1-PT, Decision [of the President] on Assignment of Defence Counsel, 20 August 2003, para. 22 (“Šljivančanin Decision”).

[3] Kvočka Decision, para. 13. See also Bagosora Decision of 19 January 2005, para. 37; Šljivančanin Decision, para. 22.

[4] Id.

[5] Kvočka Decision, para. 13.

[6] Kvočka Decision, para. 14; Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case No. IT-02-60-T, Decision on Independent Counsel for Vidoje Blagojević’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003 (“Blagojević Trial Decision”), para. 116.

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Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19.
Notion(s) Filing Case
Decision on Assignment of Counsel - 29.01.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

While the Appeals Chamber reserved the right to rule on the issue of Krajišnik’s self-representation, which it did later,[1] it decided that it was in the President’s authority to review a Registrar’s decision assigning counsel pursuant to Rule 45. At pages 2-4, it considered that:

CONSIDERING that in the Registrar’s Decision, the Registrar assigned counsel to the Applicant from the list of counsel qualified to represent indigent suspects and accused pursuant to Rule 45 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”);

CONSIDERING that under Rule 45(A), such assignments are made by the Registrar in accordance with the procedure established in the Directive on the Assignment of Defence Counsel (“Directive”),[2] but that Rule 45 does not specify who has competence to review a decision by the Registrar under that Rule;

CONSIDERING that pursuant to Article 13(B) of the Directive, an “accused whose request for assignment of counsel has been denied or who has been found to have sufficient means to remunerate counsel in part, may [. . .] file a motion to the Chamber before which he is due to appear for review of the Registrar’s decision”;

CONSIDERING however that, Article 13(B) of the Directive applies to a decision by the Registrar whether or not to assign counsel on the basis of an accused’s alleged indigency;[3]

CONSIDERING that in this case before the Appeals Chamber, the Registrar’s Decision did not deny assignment of counsel to the Applicant on the basis of non-indigency or find that the Applicant is only partially indigent; rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list,[4] which, under Rule 45(B)(i), expressly incorporates all of the qualification requirements found under Rule 44 of the Rules for counsel who appear before the International Tribunal;[5]

CONSIDERING that under Rule 44(A) and (B) of the Rules, power to review a decision by the Registrar as to whether a proposed counsel meets the required qualifications therein for representing an accused before the International Tribunal lies with the President of the International Tribunal;[6]

CONSIDERING further that, just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal, and a Chamber may only step in thereafter under its inherent power to ensure that its proceedings are fair;[7] 

FINDING therefore that the Appeals Chamber is not competent to consider the requests raised in sub-paragraphs (a) and (b) of the Motion and that the authority for reviewing the Registrar’s Decision lies with the President of the International Tribunal;

FINDING that the remaining request in sub-paragraph (c) can be decided only by the Appeals Chamber on the basis of the decision by the President of the International Tribunal in relation to requests (a) and (b) which, by their nature, have priority;[8]

HEREBY DISMISSES the Motion in relation to sub-paragraphs (a) and (b);

[]

REMAINS SEIZED of the request in sub-paragraph (c).

 

The President subsequently ruled on Krajišnik’s requests a) and c): [9]

The President held that he had jurisdiction to review the decision by the Registrar, assigning counsel to Krajišnik pursuant to Rule 45, paras. 7-10. As in the Appeals Chamber’s decision of 29 January 2007, the question centered on the interpretation of Rules 44, 45 and the Directive on the Assignment of Defence Counsel:

7.       As a preliminary matter, the first issue before me is whether I am competent to review the Impugned Decision. Krajišnik states that I have competence under Article 13(A) of the Directive, which provides that

[t]he suspect whose request for assignment of counsel has been denied may, within fifteen days from the date upon which he is notified of the decision, file a motion before the President for review of that decision. The President may either confirm the Registrar’s decision or rule that a counsel should be assigned.

In addition, Krajišnik submits that I may review the Impugned Decision because the President of the International Tribunal “has an inherent jurisdiction to review an administrative decision of the Registrar that impugns upon the rights of an accused at this Tribunal.”[10]

8.       While I do find that I have power to review the Impugned Decision, it is not on the legal bases that Krajišnik suggests. As is evident from the plain language of Article 13(A) of the Directive, the President’s power of review is with respect to the Registrar’s decision to assign counsel to a suspect, a category into which Krajišnik clearly does not fall having been convicted by a Trial Chamber of this International Tribunal.[11] Furthermore, Article 13(A) pertains to review of a Registrar’s decision whether or not to assign counsel on the basis of a suspect’s alleged indigency.[12] In this case, the Impugned Decision did not deny assignment of counsel to the Applicant on that basis; “rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list.”[13]

9.       Furthermore, while I do enjoy an inherent power to review administrative decisions of the Registrar where they impinge upon the rights of an accused before the International Tribunal,[14] I may not exercise that power where the power of review has been expressly conferred elsewhere.[15] Thus, I do not agree with Krajišnik’s argument that I may review the Impugned Decision on grounds that it fails to respect the exercise of his right to self-representation because that power lies with the Appeals Chamber. As held by the Appeals Chamber, “[w]hether an accused may exercise the right to self-representation under the Statute of the International Tribunal is for the Chamber to decide in light of its duty to ensure the fair and expeditious management of its proceedings.”[16] 

10.     However, I do have authority to review the Impugned Decision in so far as it was a determination by the Registrar as to whether Krajišnik’s counsel of choice met the qualification requirements under Rule 45(B) of the Rules for being assigned to him in this appeal. As recently clarified by the Appeals Chamber, “just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal.”[17]

As for the standard of review, the President held:

11.     The Registrar’s decision to permit or deny assignment of counsel under Rule 45 of the Rules in the “interests of justice” involves both questions of law and fact.[18] Given that the Registrar has “principal responsibility for overseeing the assignment of defence counsel”, he enjoys a certain degree of deference or margin of appreciation in reaching a decision on assignment of counsel.[19] Where a suspect or an accused requests that I review such an administrative decision of the Registrar, that individual bears the burden of demonstrating that the Registrar has erred and that such error has “significantly affected the Registrar’s decision to his detriment.”[20] In reviewing such an administrative decision by the Registrar, I will only quash that decision where I am persuaded that he has: (1) failed to comply with the legal requirements of the Directive at issue; (2) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (3) taken into account irrelevant material or failed to take into account relevant material; or (4) if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[21]

[1] See for that decision: Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February, 11 May 2007.

[2] IT/73/Rev. 11, 29 June 2006.

[3] Prosecutor v. [ljivančanin, Case No. IT-95-13/1-PT, Decision on Assignment of Defence Counsel, 20 August 2003 (“[ljivančanin Decision”), para. 16.

[4] See Registrar’s Decision [Decision of the Registrar of the International Tribunal, 8 December 2006], p. 1; see also Registrar’s Submission [Registrar’s Submission on Counsel’s Request for Review of the Registrar’s Decisions on Assignment of Counsel, 16 January 2007], paras. 9-23.

[5] This is with the exception of the language requirement of Rule 44(A)(ii), which may be waived by the Registrar as provided for in the Directive. See also Article 14(A) of the Directive.  

[6] Rule 44(B) provides that “A suspect or accused may seek the President’s review of the Registrar’s decision.” The Appeals Chamber agrees with the [ljivančanin Decision in that while the text of this Rule is not clear as to what exactly is the “decision of the Registrar” referred to, “it would seem to include at least decisions by the Registrar under paragraph (B) of Rule 44 itself, that is, decisions either i) not to permit appointment of counsel under the interests of justice exception to the working languages requirement or ii) to impose conditions on such an appointment.” Ibid., para. 13 (emphasis added). The Appeals Chamber considers that a reasonable interpretation of Rule 44(B) is that the President’s power to review extends to all conditions placed by the Registrar on the assignment of counsel under that Rule, including the conditions found in Rule 44(A). As reasoned in the [ljivančanin Decision, unless the Rules provide expressly to the contrary, they should be read as affording some form of review for administrative decisions taken by the Registrar. Ibid., para. 18.

[7] Cf. Prosecutor v. Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, 7 November 2003, para. 7. Cf. also [ljivančanin Decision, para. 18.

[8] Whether an accused may exercise the right to self-representation under the Statute of the International Tribunal is for  the Chamber to decide in light of its duty to ensure the fair and expeditious management of its proceedings. See e.g. Prosecutor v. [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 16.

[9] See [President’s] Decision on Request for Review of the Decision of the Registry in Relation to the Assignment of Counsel, 1 February 2007.

[10] Request, paras. 22-23.

[11] See Prosecutor v. Krajišnik, Case No. IT-00-39-T, Judgement, 27 September 2006.

[12] Cf. Decision on “Motion Seeking Review of the Decisions of the Registry in Relation to Assignment of Counsel”, 29 January 2007 (“Decision of 29 January 2007”), p. 2.

[13] Id., p. 3.

[14] Prosecutor v. Delić, Case No. IT-04-83-PT, Decision on Request for Review, 8 June 2005 (“Delić Decision”), para. 6.

[15] Prosecutor v. Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, 7 November 2003 (“Blagojević Decision”), para. 7.

[16] Decision of 29 January 2007, fn. 11 (emphasis added) citing Prosecutor v. Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 16.

[17] Id., p. 3 (emphasis added). See also Delić Decision, paras. 7-8.

[18] Prosecutor v. Šljivančanin, Case No. IT-95-13/1-PT, Decision on Assignment of Defence Counsel, 20 August 2003 (“Šljivančanin Decision”), para. 22.

[19] Id. citing Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka et al. Decision”), para. 12.

[20] Kvočka et al. Decision, para. 14.

[21] Id., para. 13. 

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ICTR Rule Rule 44;
Rule 45
ICTY Rule Rule 44;
Rule 45
Other instruments Directive on the Assignment of Defence Counsel (ICTY);
Article 13
Notion(s) Filing Case
Decision on Consummation of Marriage - 06.12.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: CONSIDERING that the Appeals Chamber has the statutory duty to ensure the fairness of the proceedings on appeal[1] and, thus, has jurisdiction to review decisions of the Tribunal’s Registrar and President;

P. 4: CONSIDERING, however, that the exercise of such jurisdiction should be closely related to the fairness of proceedings on appeal and should not be used as a substitute for a general power of review which has not been expressly provided by the Rules of Detention;[2]

P. 4: CONSIDERING that the Appellant has not identified any impact by the issues raised in his Motion on his right to fair proceedings;

P. 4: FINDING that the detention conditions raised by the Appellant are not related to the fairness of proceedings on appeal and that, therefore, the Appellant’s right to fair proceedings has not been infringed by the outcome of the President’s Decision;

P. 4: FINDING, therefore, that the Appellant has exhausted all available remedies and that the Appeals Chamber has no jurisdiction in this matter

[1] Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7; Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

[2] See, by analogy, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 20.

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